ILTA is the International Legal Technology Association. I am now back from ILTA 2010 Strategic Unity in Las Vegas, which was as busy and as good as ever. The red hot bloggers and tweeters were reporting on events as they happened. As usual, I prefer to wait and see what I can still remember a few days later, and to write about what interests me rather than what is seen objectively as important. My background post What happens in Las Vegas matters in the UK was a play on the old saying that what happens in Vegas stays in Vegas. These days, what happens in Vegas stands a good chance of being on FaceBook or Twitter in minutes, and the nearest I came to vice involved a new taste for cocktails, and cheesecake for breakfast (not, as my first draft had it, “cocktails and cheesecake for breakfast”, which just goes to show the importance of proper punctuation).

This avoidance of vice owed nothing to innate virtue. Between the educational sessions, the formal meetings, the social events and the random rencontres, there was no time for the more traditional Vegas pursuits of gambling, shopping, spur-of-the-moment marriage and energetic physical interaction with broad-minded fellow-delegates. I must improve my time-management next time.

Peer development is at the heart of everything ILTA does. The programme is put together by those who work in the industry, and the 160 educational sessions were aimed more at the exchange of ideas than at one-way didacticism. You get some idea of the breadth of the subjects covered from the track headings – Information management, organisational management, applications, and technical operations – and the title of this conference, Strategic Unity, was designed to emphasise that the lawyers in both firms and corporate law departments must work with the IT departments towards a common aim. IT is no longer just a service department providing an infrastructure, applications, training and troubleshooting; all these remain important, but collaborative information management, mobile applications and social media all require the integration of IT with the timely and economic delivery of legal services. Not so very long ago, the role of IT departments was to provide passive services – an accounts system, a contacts database, word processing and print services. If that is all you have now – well, send your managing partner and IT director to ILTA next year, if you are still in business next year.

My own interest, of course, is in the management of documents for litigation. The first session which I attended was called Defensible Ediscovery Processes. You get some idea of the care and attention to detail which goes into ILTA’s annual conference by looking first at the Monday agenda and then, by following the LIT1 link, at the session details – the event description, the speakers, and links to the documents used or referred to in the session. Joanne Lane of MetLife kept the speakers – Browning Marean of DLA Piper, William Kellermann of Wilson Sonsini Goodrich & Rosati, Salvatore Mancuso of Willkie Farr & Gallagher and Craig Ball – under control in a room so full that extra chairs had to be brought in.

What does “defensible” mean?, Joanne asked. The dictionary says “protected against attack”, with the example “bivouacked in a defensible position”. Best practice, she said, sounded aspirational, a contrast perhaps with “less lousy practices” or “practices which suck the least”. Browning Marean managed, as usual, to wrap a serious point in a joke; defensible, he said, means “what you can get away with without being found guilty of spoliation”. To English ears, at least, this sounds like common sense – neither the clients nor the interests of justice require more than the minimum necessary to comply with the rules and to get the case tried or settled to your client’s advantage in the shortest time at the least expense.

Reasonableness, Browning added, embraces good-faith, a vital component at a time when the gap between technology demands and the ability of lawyers to use technology has never been bigger. He might have added that good faith needs to be policed, which is why judges need at least a minimum of understanding of what is being said – or being left unsaid – by those who are in front of them.

Faith turned up in a different context as well: how can lawyers have faith that the technology is delivering the right answers? Sal Mancuso gave an example of an e-mail retrieved from (or possibly not retrieved from) a system, with 26.5 pages missing. How can you be sure that the system which you are using will not do that to you? One answer, said Craig Ball, is that manual review and automated review each have strengths and weaknesses: to some, manual review is the gold standard; to others, I might have added, or in other circumstances, it is just a more expensive way of running the same risks. Costs dictate, Craig said, that the machines will win once the judges understand their strengths and limitations. No approach is guaranteed to find everything. Both William Kellermann and Sal Mancuso said that they regularly sent out known data sets to suppliers so that they can check their output against a standard measure of accuracy.

This idea that perfection must be qualified by cost and proportionality recurred in a session on cloud computing. The panelists were Jack Halprin of Autonomy iManage, Michael Lackey of Mayer Brown and (in a welcome return to the ILTA conference platform after a long absence) Jonathan Maas of Ernst & Young. Cloud computing remains a contentious area, with no obvious agreement even as to what the term means, let alone as to its implications. Autonomy iManage is the largest provider of cloud services in this market, so Jack Halprin’s position was never in doubt; Michael Lackey, himself an enthusiast, admitted that many of his partners had mixed views or were against the idea; Jonathan Maas set himself up as an opponent, providing a handy whetstone for the other panelists to sharpen their blades on. Michael Lackey’s approach was similar to the one I take with opponents of electronic disclosure – dissect the objections one at a time, accepting that there is room for more than one view, and testing the arguments against the alternatives. Arguments based on pure cost are pretty compelling, and if one method of achieving an objective is very much cheaper than others, then the burden shifts to those who argue for the more expensive route.

Jack Halprin emphasised the difference between public cloud providers like Google, and those like Autonomy and others who segregate data in private and identifiable silos. The key word here is perhaps “identifiable”, which connotes a geographical certainty as well as anything else. I sometimes wonder if the imagery associated with cloud computing (invariably a jagged line disappearing into some cumulus) does not leave some people with the idea that their precious data is indeed floating in some inchoate container up in the air. If you neglect to provide in your contract that your data remains in a specified jurisdiction, and if you fail to conduct proper due diligence checks on the provider, then you deserve all you get. Like any risk assessment, it involves weighing cost against other factors; most of those other factors are definable and quantifiable.

Those were, in fact, the only sessions I managed to attend amidst the many competing attractions of ILTA 2010. I will come back to the rest in a separate post (or two) shortly, but I must first say a little more about the UK e-disclosure Practice Direction which surfaced just before I left for Las Vegas, and must knock off some of the correspondence which accumulated whilst I was away.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere